Activists sit down in front of a truck carrying military equipment thus taking control of the Port of Olympia entrance for the second time in 5 days. (Photo: Phoebe Blanding/olywip.org)

The Ninth Circuit affirmed summary judgment Tuesday against members of an anti-war group who claimed civilian employees of the Army violated their constitutional rights by infiltrating the group and facilitating their arrest.

The Port Militarization Resistance protested the use of Washington state seaports to ship arms to Afghanistan and Iraq. John Towery, a civilian working for the Army, infiltrated the group and shared information about its plans with his supervisor, Thomas Rudd. Rudd in turn informed police in Tacoma and Olympia, which led to protesters’ arrests.

The protesters claimed the arrests were without probable cause, violating the Fourth Amendment and chilling their First Amendment rights. The trial court granted summary judgment to Towery, Rudd and the police on all claims.

Olympia police are entitled to qualified immunity for arresting and pepper-spraying the plaintiffs because they plaintiffs did not present sufficient evidence that a constitutional right was violated.

The Tacoma police did not violate the protesters’ privacy rights by infiltrating their listserv, which was never established as private or protected by attorney-client privilege, nor did they violate one protester’s privacy by setting up a camera two blocks from his home.

Towery and Rudd also are entitled to qualified immunity.

“Undercover operations, in which the agent is a so-called ‘invited informer,’ are not ‘searches’ under the Fourth Amendment,” the panel held.

The protesters failed to meet their burden of demonstrating that the investigation was not undertaken in good faith.

“They have produced no evidence that would demonstrate that the desire to deter plaintiffs’ speech was a substantial motivator for defendants Towery and Rudd,” the panel wrote.

The judges also denied the plaintiffs’ request to unseal confidential documents.

Rudd was represented by Theodore Angelis with K&L Gates in Seattle, who said in a statement: “Mr. Rudd is pleased that the Ninth Circuit agreed that he did not violate anyone’s constitutional rights. He hopes that the court’s ruling puts a stop to the online postings, harassing text messages, and death threats he has been receiving for the past few years.”

The panel included Ninth Circuit Judges William Fletcher and Ronald Gould and Senior U.S. District Judge Frederic Block from the Eastern District of New York.

The protesters were represented by Lawrence Hildes, of Bellingham, who could not be reached for comment Tuesday.

Towery’s attorney, Thomas Brennan with McKay Chadwell in Seattle, could not be reached for comment, nor could John Justice, with Law, Lyman, Daniel, Kamerrer & Bogdanovich, in Olympia, who represented the Olympia police.

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